Second Circuit: Trafficking Victims Protection Act Creates a Civil Remedy for Immigrants Lawfully in the Country as Temporary Guest Workers

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July 25, 2019

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In Adia v. Grandeur Management and Raja Younas, the 2nd Court of Appeal stated that immigrants could bring a civil lawsuit against employers who violate the Trafficking Victims Protection Act (TVPA). Forced labor under the TVPA can occur when a person knowingly obtains labor by abuse or threat, or by a pattern or scheme to cause belief that, if labor is not performed, there would be serious harm or physical threat.

There, the employer was alleged to have threatened to withdraw their sponsorship of an H-2B worker’s immigration status if he stopped working for them or gave them “any trouble,” constituting “forced labor” under the TVPA. Specifically, an employee working on a temporary guest worker Visa in South Dakota was offered employment in South Carolina, with a promise to file for an extension of his H-2B status. While working for the employer, they agreed to petition for H-1B status on his behalf. However, instead of completing its promise, the employer allegedly said they did not file any such petition and that he had been working in the country illegally. Additionally, he alleged that his immigration status was threatened if he quit or complained about not receiving overtime pay. Thus, the employee was under the belief that he would suffer the “serious harm” of deportation by the employer if he stopped working for them. These allegations, the court stated, were enough to support a forced labor claim in violation of the TVPA.

Additionally, the court stated that recruiting plaintiff (even if only from another state) in exchange for the promise of transfer and sponsorship of his immigration status, qualified as a TVPA trafficking claim. It did not require transportation from another country. Lastly, both the corporate employer and the individual manager could be held liable under the TVPA.

Action Items

  1. Immigration sponsorship and employment activities should be reviewed and monitored by legal counsel for compliance with current law.
  2. Have managers trained on immigration sponsorship protections.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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